Feds seize spy records to keep them secret

Open records laws mean nothing 'if government can violate at its whim'

WASHINGTON – Federal agents in Florida seized cell phone surveillance records that were targeted in a “run-of-the-mill” public records request in state court so that information about the tracking process, using devices known as “stingrays,” would be kept from the public, according to a report.

The fight is being handled by the American Civil Liberties Union, whose staff attorney, Nathan Freed Wessler, explained the situation online.

“A run-of-the-mill public records request about cell phone surveillance submitted to a local police department in Florida has unearthed blatant violations of open government laws, including an incredible seizure of state records by the U.S. Marshals Service, which is part of the Justice Department,” he wrote in an online posting.

He said his organization has been filing dozens of public records requests all over Florida because it is interested in the use of “controversial cell phone tracking devices known as ‘stingrays.’ … Stingrays track phones by mimicking service providers’ cell towers and sending out powerful signals that trick nearby phones – including phones of countless bystanders – into sending their locations and identifying information.”

In one case, though, officers from the U.S. Marshal’s office in Tampa seized the records only hours before ACLU officials were scheduled to gain access to them. An emergency motion was filed, but Wessler argues online that the federal move was outlandish.

He noted that what eventually was revealed was that “stingrays ’emulate a cell phone tower’ and ‘force’ cell phones to register their location and identifying information with the stingray instead of with real cell towers in the area.”

The details also revealed stingrays can track cell phones any time they are on, they can force cell phones to “transmit information back ‘at full signal, consuming battery faster,'” and capture details from all cell phones in the region, including those of innocent bystanders.

In the specific case, police allegedly used one stingray mounted on a police vehicle to drive through the area until they pinpointed an apartment complex, and walked door to door inside the building with another unit to figure out which apartment a cell phone was located in.

“In other words, police were lurking outside people’s windows and sending powerful electronic signals into their private homes in order to collect information from within,” Wessler wrote.

In seizing the records originally, the U.S. Marshals claimed that they had deputized a Sarasota police officer investigating a case with evidence provided by the device.

The documents reveal that police there have used the devices an estimated 200 times since 2010, but police have not ordinarily cited their source of information in documents, even search warrants, because the device’s maker insisted on a nondisclosure agreement.

“Of course the federal government doesn’t want America to learn specifics of its stingray program. The entire gist of the program is to covertly track people using their mobile phones and devices. If Americans learned just how much of their privacy was being encroached, that might cause enough outcry that the government would then have to obtain warrants before using it – something they have a growing track record of disdaining,” she said.

The ACLU’s interest in the stingray device developed with a case several years earlier, in which a defendant was identified in an alleged electronic tax fraud scheme through the use of the devices.

Authorities had supposedly sought judicial approval in their use of the stingray device in the case, but in actuality had not.

The duplicity was uncovered when a northern California ACLU office won a Freedom of Information lawsuit in 2013. It granted the ACLU access to Department of Justice emails that revealed the use of the devices.

From California, the ACLU’s interest spread to Florida and the Thomas v. State case, where Tallahassee police had used a stingray in locating a suspect in an alleged sexual battery and theft case. It was a cell phone that allegedly was taken.

The defendant now has been granted new court proceedings in his case, based on the fact authorities did not obtain a search warrant but instead used the secret stingray to hunt down information.

The appellate court opinion said, “We assume the police had probable cause to believe the missing cell phone was inside the apartment. But they needed a warrant, as well, absent any exception justifying their forced entry.”

The federal acquisition of state records, making them federal records, was a new concept for many, including a former U.S. magistrate judge, Brian Owsley, who told Ars Technica, “This one is particularly disturbing given the federal government’s role in coming in and taking all of these records that were at issue in a state open government act.”

Policy analyst Jay Stanley wrote for the ACLU a warning about secrecy:

“When one party to a dispute before a court, including the Supreme Court, can make assertions that the other party cannot dispute because of ‘state secrecy,’ then distortions, inaccuracies, and outright lies inevitably follow and should surprise no one,” he wrote. “Secrecy powers are inherently dangerous in a democracy, and need to be very tightly confined to those specific circumstances where the national interest genuinely requires that they be granted. Unfortunately, in the absence of strong checks and balances, government secrecy is metastasizing throughout our democracy. Drastic reform is needed to fix this situation. Nothing else will do.”